City and County of San Francisco (Oceanside Wastewater Treatment Facility and Southwest Ocean Outfall)

Plain-English summary

Coastal Advocates and the Sierra Club challenged EPA Region IX's NPDES permit for San Francisco's Oceanside wastewater treatment facility and Southwest Ocean Outfall. They argued that the Westside Transport was a publicly owned treatment works, that the permit lacked adequate technology-based controls and enforceable mass limits, and that it unlawfully reduced earlier effluent limits. The Environmental Appeals Board held that the outfall portion was not a POTW, that the technology-based challenges were not ripe because EPA was reproposing that portion of the permit, and that the anti-backsliding rules did not apply because no prior permit had taken effect. The Board remanded the permit to establish appropriate mass limits for the affected period.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1251, 1311, 1342, and 1362; 40 C.F.R. §§ 124.15, 124.60, 124.72, 124.74, 124.75, and 124.91.
• Outcome: Review was denied in part, and the permit was remanded to establish enforceable mass limitations.
• Key point: A permit must establish enforceable mass limits, while challenges to permit provisions that EPA has withdrawn and is reproposing may be unripe.

Full text (EPA EAB public release)

+CITY AND COUNTY OF SAN FRANCISCO 559

IN THE MATTER OF CITY & COUNTY OF SAN
FRANCISCO (OCEANSIDE WASTEWATER TREATMENT
FACILITY & SOUTHWEST OCEAN OUTFALL)

NPDES Appeal No. 91-18
Permit No. CA 0037681

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided March 24, 1993

Syllabus

Coastal Advocates and Sierra Club petition for review of Region IX’s denial
of their request for an evidentiary hearing concerning a National Pollutant Discharge
Elimination System (“NPDES”) permit issued to the City and County of San Francisco.
The NPDES permit regulates discharges from a publicly owned treatment work
(“POTW”) and combined sewer overflow (“CSO”) collection point known as the Westside
Transport (“Transport”). Both the POTW and the Transport discharge through a 4.5
mile outfall, known as the Southwest Ocean Outfall or “SWOO,” to federal waters
in the Pacific Ocean. The petition challenges the technology-based requirements for
discharges from the Transport, the mass limitations for pollutants discharged from
the POTW, and the permit’s compliance with the anti-backsliding provision of the
Clean Water Act.

With respect to the technology-based requirements for discharges from the Trans-
port, Petitioners maintain that the Transport is a POTW and, therefore, the Transport
should be required to meet secondary treatment before discharging through the SWOO.
Alternatively, they maintain that the Region failed to apply technology-based “treat-
ment” or “limitations” as required by the “best available technology economically
achievable” (“BAT”) and the “best conventional pollutant control technology” (“BCT”).
They maintain that the Region failed to consider and to analyze adequately the rel-
evant factors for determining the level of treatment required by BAT and BCT. They
also maintain that the permit fails to comply with the requirement of the National
Combined Sewer Overflow Control Strategy of EPA that all permits for CSO discharges
should require specific minimum BCT/BAT technology-based limitations.

With respect to mass limitations for discharges from the POTW, Petitioners
maintain that the equation for converting to mass limitations from concentration
limitations fails to establish enforceable mass limitations. With respect to the permit’s
compliance with the anti-backsliding provision of the Clean Water Act, Petitioners
maintain that the subject permit contains less stringent toxic effluent limitations
for discharges from both the POTW and the Transport than a prior permit which

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560 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

was issued by the Region for that discharge and a companion State Order. (The
prior permit was never put into effect.)

Held: First, the Regional Administrator correctly concluded that the portion of
the Transport that discharges directly through the SWOO to the Pacific Ocean is
not a POTW and that the applicable technology-based controls for this discharge
are BAT and BCT to be determined on the basis of “best professional judgment”
(“BPJ”). Second, those issues concerning the Region’s determination of the appropriate
BAT and BCT technology-based controls applicable to the discharges from the Trans-
port directly through the SWOO to the Pacific Ocean are not ripe for review since
the Region has withdrawn, and is in the process of reproposing, that portion of the
permit that concerns those issues. Third, the restrictions on backsliding do not apply
to the subject permit since there was no prior NPDES permit in effect for the subject
discharges.

Finally, the permit fails to establish enforceable mass limitations during a specific
three-month period of the year. This portion of the permit is remanded to the Region
to establish appropriate mass limitations as required by EPA regulations. |

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum and Edward E. Reich.

Opinion of the Board by Judge Firestone:

Petitioners, Coastal Advocates and Sierra Club (Loma Prieta
Chapter), seek review of Region IX’s denial of their request for an
evidentiary hearing on issues concerning a National Pollutant Dis-
charge Elimination System (“NPDES”) permit issued to the City and
County of San Francisco pursuant to the Federal Water Pollution
Control Act, 33 U.S.C. §1251 et seg. (“Clean Water Act”). The Envi-
ronmental Appeals Board has jurisdiction to grant or deny this peti-
tion for review under 40 CFR §§124.72 & 124.91. See 57 Fed. Reg.
5320, 5335-5337 (February 13, 1992).

J. BACKGROUND
A. The Permit

On July 25, 1990, Region IX issued the subject NPDES Permit
No. CA0037681 to the City and County of San Francisco (“the City”).

1While California has been delegated NPDES permitting authority for discharges
into “navigable waters” within its jurisdiction, the subject outfall extends into ocean
waters beyond that three-mile jurisdiction; consequently, EPA is the NPDES permit-
ting authority for discharges from the subject outfall; Pacific Legal Foundation v.
Costle, 586 F.2d 650, 655 (9th Cir. 1978), rev’d on other grounds, 445 U.S. 198 (1980)
(only EPA had authority to grant permits to regulate discharges beyond the “territorial
seas” defined as “the belt of the seas * * * extending seaward a distance of three
miles”, see Sections 402(b) and 502(7) & (8) of the Clean Water Act, 33 U.S.C.
§§ 1342(b) & 1862(7) & (8) (state authority to administer the NPDES permit program

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CITY AND COUNTY OF SAN FRANCISCO 561

The permit was co-signed by the California Regional Water Quality
Control Board for the San Francisco Bay Region (“State Regional
Board”) and designated State Order No. 90-093.2 The subject NPDES
permit regulates the discharge of pollutants from a wastewater collec-
tion, treatment, and disposal system serving the City’s Richmond-
Sunset Sewerage Zone. The discharge from that system occurs
through a 4.5 mile outfall known as the Southwest Ocean Outfall
(“SWOO”). This system serves the western third of the City which
is primarily a residential area. This system presently includes the
Richmond-Sunset Treatment Plant and a two-chambered tunnel
known as the Westside Transport (“Transport”) which is part of the
City’s combined sewer system. The Richmond-Sunset Plant is sched-
uled to be replaced by the end of 1993 with the new Oceanside
Treatment Plant. The subject permit governs both the present dis-
charge by the Richmond-Sunset Plant and the future discharge by
the Oceanside Plant, together with the discharge from the Transport.

By virtue of the City’s combined sewer system, the underground
pipes used to carry stormwater runoff during “wet weather” condi-
tions are the same pipes used to carry raw sewage. Ordinarily, flows
during “dry-weather” conditions consist of sanitary and industrial
wastes which are continuous with little variation in the rate of flow.
Flows during “wet-weather” conditions, in contrast, consist of both
sanitary and industrial wastewater and stormwater runoff and are
susceptible to large, sudden increased flow rates depending on the
actual rainfall conditions.

During “dry weather” conditions, the wastewater generated by
this western portion of the City averages 22 million gallons per day
(“mgd”). The Richmond-Sunset Plant can treat up to 45 mgd of com-
bined sewage and stormwater. The new Oceanside Plant will be able
to treat up to 65 mgd of the combined flow, including a maximum
of 45 mgd at the secondary treatment level. During peak “wet weath-
er” conditions, the permit contemplates that when the capacity of
the treatment plant then in operation is exceeded, the resulting com-

is limited to discharges into “navigable waters” within its jurisdiction; “navigable
waters” means the waters of the United States, including the territorial seas); Natural
Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 863 F.2d
1420, 1435-1436 (9th Cir. 1988) (NPDES permit issued by EPA that regulates dis-
charges from facilities located in waters seaward from the three-mile belt of the
“territorial seas” does not require state certification).

2 According to the permit, the State adopted this order with “waste discharge
limits” for the Southwest Ocean Outfall (“SWOO”) in order to indicate state concur-
rence with EPA’s action and to assure that the discharge does not cause state water
quality standards to be violated in state waters.” Permit, at 3-4.

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562 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

bined sewer overflow (“CSO”) will be diverted to the Transport in
order to prevent damage to the plant.

The Transport is a 2.5 mile long concrete tunnel with a two-
chambered design. When incoming combined flow exceeds the treat-
ment plant’s capacity, the excess is first diverted to the Transport’s
east chamber, known as the “storage box,” for storage until the treat-
ment plant is capable of receiving it for treatment.* If the combined
flow exceeds the east chamber’s storage capacity, the excess passes
under a baffle and over a weir to the west chamber, known as
the “decant box.” From the decant box the excess combined flow
is pumped to the SWOO where it blends with the effluent from
the treatment plant and then is discharged into the Pacific Ocean.
This process removes “some settleable solids” and floatable materials
from the “decant.” In a year of average rainfall, the permit provides
that “decant” may flow from the west chamber directly to the SWOO
and then out to the Pacific Ocean twenty-six times. During certain
peak wet weather events, the combined flow may exceed even the
west chamber’s capacity and flow through another set of weirs into
state waters at Ocean Beach. A state permit issued by the State
Regional Board in September 1987, NPDES Permit No. CA0038415,
also known as State Order No. 87-120, restricts those discharges
to a long-term average of eight times yearly.

In accordance with Section 301(b)(1)(B) of the Clean Water Act,
33 U.S.C. §1311(b)(1)(B), which governs publicly owned treatment
works (“POTWs”), and 40 CFR § 133.102, the subject permit requires
that the treatment plant meet secondary treatment before discharg-
ing through the SWOO.5 The Region has determined that the portion
of the Transport, the west chamber, which pumps CSOs directly
to the SWOO is not a POTW. Rather, the Region has determined
that this portion of the Transport must meet the “best available
technology economically achievable” (“BAT”) and the “best conven-
tional pollutant control technology” (“BCT”) as required by Section

3 According to state NPDES Permit No. CA0038415, the “Westside Project,” which
includes the Westside Transport, Westside Pump Station, SWOO and effluent line
from the Richmond-Sunset Plant, was completed in February 1987.

4The Region has represented that the combined flows stored in the east chamber
will receive secondary treatment at the Oceanside Plant. Region’s Memorandum Oppos-
ing Petition for Review, at 11 (Hereinafter referred to as “Region’s Response to Revised
Petition”).

5The Regional Administrator has reproposed, pursuant to 40 CFR § 124.60(b),
the issue of whether the Oceanside Plant will be exempt, under certain wet weather
conditions, from a certain secondary treatment requirement for biochemical oxygen
demand (“BOD”) and total suspended solids (“TSS”).

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CITY AND COUNTY OF SAN FRANCISCO 563

301(b(2) of the Clean Water Act, 33 U.S.C. § 1311(b)(2).6 BAT and
BCT limitations for point sources other than POTWs are often based
on uniform, national effluent limitation guidelines established for
different classes and categories of point sources.” Since no such guide-
lines have been established for CSOs, applicable BAT and BCT limi-
tations are determined according to “best professional judgment”
(“BPJ”) on a case-by-case basis.®

The subject permit contains no numerical or pollutant-specific
“effluent limitations” based on BPJ for pollutants discharged from
the west chamber of the Transport directly to the SWOO.® In the
Fact Sheet for the subject permit, the Region has concluded that
“appropriate treatment means ‘no treatment’ for virtually all pollut-
ants,” 1° but that “baffling represents the BAT for floatables.” The
permit does include some restrictions on the discharge of pollutants
from the Transport directly through the SWOO. The permit incor-
porates “the prohibitions and provisions of [state] NPDES Permit
No. CA0038415” which regulates CSOs discharged from the Transport
to state waters.!1 That state NPDES permit, in turn, requires baffling

6Section 301(b(2) of the Clean Water Act also required compliance with the
“best practicable control technology” (“BPT”). Section 301(b)(2), as amended, required
compliance with BPT on or before July 1, 1977, and compliance with BCT and BAT
on or before March 31, 1989.

7See Section 304(b) of the Clean Water Act, 33 U.S.C. § 1314(b); 40 CFR § 124.401
et. seq. (regulatory guidelines that set forth the degree of effluent reduction attainable
through the application of BAT and BCT for specific classes and categories of point
sources other than POTWs).

8See 40 CFR §125.3(d) (regulations that set forth factors and other matters to
be considered in setting technology-based treatment requirements on a case-by-case
basis); 54 Fed. Reg. 37,370, 37,372 (Sept. 8, 1989) (National Combined Sewer Overflow
Control Strategy which provides that all permits for CSO discharges should require
specific minimum BCT/BAT technology-based limitations, established on a BPJ basis,
and that such “BPJ” permits” must consider the factors set forth at 40 CFR § 125.3(d)).
®°The permit states that:

(CSOs) such as the decant from the Westside Transport are not
normally subject to effluent limits, consistent with both EPA’s
and the State’s CSO Control Strategy. * * [Elffluent limits for
decant are not appropriate * * .

Permit, at 2-3.

10 The “no treatment” determination for BCT technology-based effluent limitations
applied to suspended solids, BOD, grease and oil, pH, and coliform bacteria. Fact
Sheet, at 9-12. The determination for BAT technology-based effluent limitations ap-
plied to ammonia, chlorine residual, and “metals and organic pollutants.” Id.

11The subject permit prohibits “bypass”, which is an intentional diversion of waste
streams from any portion of a treatment facility, but allows” overflows” in accordance
with “the prohibitions and provisions of NPDES Permit No, CA0038415.” Permit,
at 4; see 40 CFR § 122.41 (m) (definition of “bypass”).

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564 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

in the Transport to reduce “floatables.” 12 The permit also requires
specified best management practices (“BMPs”) for toxic source reduc-
tion in the “decant.” 18

In addition to the foregoing standards for discharges from the
Transport, the permit also establishes standards for discharges from
“the sewage treatment plant” (or publicly owned treatment plant
(“POTW”)) through the SWOO."4 More specifically, the permit estab-
lishes secondary treatment standards for certain conventional pollut-
ants and establishes concentration effluent limitations for certain
toxic pollutants discharged from the treatment plant through the
SWOO. The permit also includes an equation for converting the per-
mit’s concentration effluent limitations to mass effluent limitations.'®
Under the terms of the permit, mass limitations are set based upon
“actual” flow during a three-month “dry weather” period each year.
There are no mass limitations set in the permit for “wet weather”
flows.

12 State NPDES Permit No. CA0038415 require that:
The discharger shall prepare a facilities operation plan which
is consistent with the following objectives: © ,
7 eee eH Oe
b. Assure that all discharges from the diversion structures
are first baffled to reduce floatables volume.

As incorporated into the federal NPDES permit, the term “diversion structures” would
include the Transport.

13The BMPs include educational control measures, regulatory control measures,
and public agency control measures (recycling and alternative disposal programs).
Permit, at 14-17.

14 While the subject permit is entitled “NPDES Requirements * * * for Oceanside
Treatment Facility and Southwest Ocean Outfall City and County of San Francisco,”
the terms of the permit apply to the discharge of wastewater to federal waters from
the SWOO and require sampling of effluent from “the sewage treatment plant.” See
Permit, at 4. The Region has represented that the subject permit governs both the
present discharge from the Richmond-Sunset Plant and the future discharge from
the Oceanside Plant. Region’s Response to the Revised Petition, at 3.

15 Concentration limitations and mass limitations have distinct and separate regu-
latory and environmental functions. See Natural Resources Defense Council, Inv. v.
Texaco Refining and Marketing, Inc, 800 F.Supp. 1, 20 (D.Del. 1992) (“Texaco”); Hercu-
les, Inc. v. Evironmental Protection Agency, 598 F.2d 91, 103 (D.C. Cir. 1978) (“Hercu-
les”). Concertration limitations not only limit, in general, the concentration of pollut-
ants in effluent discharged into the receiving waters, but they also provide an impor-
tant limit on the discharge of pollutants during volumes of low flow when high con-
centration levels would not otherwise be limited by mass limitations. See Hercules,
supra; Texaco, supra. Mass limitations, on the other hand, limit the total mass of
pollutants that are discharged into the receiving waters, and, importantly, discourage
permittees from diluting effluent to meet concentration limitations. Hercules, supra;
Texaco, supra.

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CITY AND COUNTY OF SAN FRANCISCO 565

B. Procedural Background

The NPDES permitting history of the SWOO is somewhat
unique. The City began discharging through the SWOO in September
1986 pursuant to a state NPDES permit designated “No. CA0037681”
which is the same permit number as the subject permit. Since the
discharge from the SWOO is into federal waters, beyond the three-
mile territorial sea, in December 1986, EPA determined that the
City needed a federal NPDES permit. Pending issuance of a federal
permit, EPA issued an administrative order that established effluent
limitations and monitoring requirements for all discharges through
the SWOO.16 Thereafter, in July 1988, the Region issued a federal
NPDES permit waiving secondary treatment under Section 301(h)
of the Clean Water Act, 33 U.S.C. §1331(h).17 This permit was co-
signed by the State and designated State Order No. 88—106.18 The
Section 301(h) permit contains other requirements which Petitioners
argue are more stringent than the subject permit.19

Several evidentiary hearing requests regarding this Section
301(h) permit were submitted in August 1988 to the Region; those
requests have never been granted or denied. Rather, in February
of 1990, approximately one-and-one-half years after the Section 301(h)
permit was issued and the evidentiary hearing requests were submit-
ted, the City submitted written notification to the Region of its “in-
tent to withdraw” its application for the Section 301(h) waiver. This
decision led to issuance of the subject permit. In a letter from William
H. Pierce, Chief, Permits and Compliance Branch of Region IX to
Robert Todd Cockburn of the Department of Public Works of the
City, dated July 26, 1990, the Region agreed to accept withdrawal

16EPA Administrative Order No. IX-FY87-7 was issued on December 15, 1986,
pursuant to Sections 308 and 309 of the Clean Water Act, 33 U.S.C. §§1318 &
1319. This order “expires immediately upon the effective date of a NPDES permit
issued by EPA.” Administrative Order IX-FY87-7, at 20.

17If certain requirements are met, Section 301(h) authorizes EPA, with state
concurrence, to issue an NPDES permit which modifies the secondary treatment re-
quirements for a POTW that discharges into ocean waters.

18 According to the subject permit, the State co-signed the Section 301(h) permit
for the purpose of “revising waste discharge requirement[s]” for the discharge from
the SWOO. Permit, at 2. This action “represented final state concurrence on EPA’s
waiver of secondary treatment requirements.” Id.

19 See infra notes 50 and 51.

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566 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

of the City’s Section 301(h) application at the time the subject permit
becomes effective.?°

As noted, the subject permit was issued on July 25, 1990. On
August 28, 1990, Petitioners filed a Request for an Evidentiary Hear-
ing (“Hearing Request”).21 Almost one year later, on July 11, 1991,
prior to issuance of any decision by the Regional Administrator to
grant or deny the Hearing Request, Petitioners filed a Petition for
Review on the theory that the Regional Administrator had “construc-
tively denied” their Hearing Request on the subject permit. On De-
cember 2, 1991, the appeal was stayed until January 31, 1992, to
+allow additional time for the Region to grant or deny the Hearing
Request. On January 31, 1992, the Regional Administrator issued
notice of his intent to repropose certain portions of the NPDES permit
under 40 CFR §124.60(b) and denied the Petitioners’ Hearing Re-
quest.2? On February 4, 1992, the Region filed a Motion to Dismiss
the Petition for Review. On March 2, 1992, Petitioners filed an opposi-
tion to the Region’s Motion to Dismiss and a Revised Notice of Appeal
and Petition for Review (“Revised Petition”).

20See also Letter from Rudolf Nothenberg, Chief Administrative Officer of the
City, to Daniel W. McGovern, Regional Administrator for Region IX, dated May 30,
1990.

21The Sierra Club Legal Defense Fund filed the Hearing Request on behalf of
the Central Coast Conservation Center (“Central Coast”), predecessor to Coastal Advo-
cates, the Surfrider Foundation and the Sierra Club.

22The Regional Administrator identified the portions of the permit that were
to be withdrawn and reproposed as those portions of the permit which concern the
following issues:

1. Whether BAT or BCT requires effluent limitations that reflect
   the additional amount of pollutant removal achievable through
   expansion of the Transport’s existing capacity to store com-
   bined flows for later treatment at the new Oceanside Plant,
   thus reducing the amount of decant discharged to the SWOO.

2. Whether the new Oceanside Plant should be exempted in
   whole or in part under 40 CFR §133.103(a) from complying
   with the monthly 85% removal rate for BOD and TSS when
   its hydraulic capacity is exceeded for more than three days
   during wet weather.

3. Whether a wet weather flow limit for the effluent from the
   Oceanside Plant is appropriate and, if so, what the appro-
   priate limit should be.

Notice of Intent to Repropose, at 6-7. As of the date of this order, Region [X has
not issued a draft permit reproposing the relevant portions of the permit.

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In the Revised Petition, Petitioners again raise most of the issues
asserted in the initial Petition.28 These issues fall into three cat-
egories: challenges to the technology-based requirements for dis-
charges from the Transport; challenges to the mass limitations for
pollutants discharged from the treatment plant; and challenges to
the subject permit’s compliance with the anti-backsliding provision
of Section 402(0) of the Clean Water Act, 33 U.S.C. §1842(0). We
will discuss each in turn.

Il. DISCUSSION

Under the rules governing an NPDES permit proceeding, there
is no appeal as of right from the Regional Administrator’s decision.
In re Sequoyah Fuels Corporation, NPDES Appeal No. 91-12, at
3-4 (EAB, Aug. 31, 1992); In re Miners Advocacy Council, NPDES
Appeal No. 91-23, at 3 (EAB, May 29, 1992). Ordinarily, a petition
for review is not granted unless the Regional Administrator’s decision
is clearly erroneous or involves an exercise of discretion or policy
that is important, and should therefore be reviewed by the Environ-
mental Appeals Board. Sequoyah Fuels, supra; 44 Fed. Reg. 32,887
(June 7, 1979) (Preamble to 40 CFR Part 124), The petitioner has
the burden of demonstrating that review should be granted. Miners
Advocacy Council, supra, at 3; see 40 CFR § 124.91(a).

A. The Technology-Based Requirements for Pollutants Discharged
from the Transport

We turn first to Petitioners’ challenge to the technology-based
requirements, or lack thereof, for pollutants discharged from the
Transport through the SWOO to the Pacific Ocean. Petitioners argue
that the Region erred by concluding that the Transport is not a
POTW and that secondary treatment is not necessary for the com-
bined flows discharged from the Transport. Alternatively, they argue
that if technology-based controls are required in accordance with BAT
and BCT, the Region erred by (1) failing to require “treatment” or
“effluent limitations” for pollutants discharged from the Transport,
(2) failing to consider and to analyze adequately the relevant factors
for determining the level of “treatment” required by BAT and BCT,
and (3) failing to require certain minimum technology-based limita-

28 Because the Region denied Petitioners’ Request subsequent to the filing of the
original Petition and because Petitioners assert that the Revised Petition is “the [origi-
nal] petition for review in its entirety, as amended,” we grant the Region’s Motion
to Dismiss the original Petition on the ground it is superseded by the Revised Petition.
To the extent there is any difference between the original Petition and the Revised
Petition, this appeal is limited to only those concerns set forth in the Revised Petition.

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568 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

tions set forth in the National Combined Sewer Overflow Control
Strategy (“EPA’s CSO Strategy”), 54 Fed. Reg. 37,370 (Sept. 8, 1989).
For the reasons stated below, we conclude that the west chamber
of the Transport is not a POTW and that the remaining issues as-
serted by Petitioners are not now reviewable in that the Region
has not yet issued a final permit decision regarding the appropriate
BAT and BCT requirements for direct discharges from the west cham-
ber of the Transport through the SWOO to the Pacific Ocean.

1. Whether the Region Erred by Determining that the Trans-
   port is not a POTW

Initially, we address the question of whether discharges from
the Transport through the SWOO are discharges from a POTW there-
by requiring the Transport to provide secondary treatment in accord-
ance with Section 301(b(1)(B). This question raises a purely legal
issue.?4

In support of their position that the Transport is a POTW, Peti-
tioners make two arguments.25 First, they argue that the Transport
falls within the definition of “POTW” set forth at 40 CFR § 122.2.
Second, they argue that the Transport falls within the definition
of “treatment works” set forth at Section 212(2) of Title II of the
Clean Water Act, 33 U.S.C. § 1292(2), and that such definition applies
to Section 301 of Title III of the Clean Water Act, 33 U.S.C. § 1311.

EPA defines the term “POTW” at 40 CFR §122.2 for purposes
of implementing the NPDES permitting program required by Section
402 of the Clean Water Act, 33 U.S.C. § 1342.26 Section 122.2 defines
a “POTW” as follows:

24The Regional Administrator denied a hearing on this issue because it presented
a “purely legal” issue and raised no material issue of fact as required under 40
CFR §124.75(a). When only legal issues are raised, the Regional Administrator is
required to deny an evidentiary hearing request; however, on review of the denial
the Board is authorized by § 124.91(aX1) to review policy or legal conclusions of the
Regional Administrator. See 40 CFR § 124.74 (note).

25We note that while the Sierra Club commented, in general, on the permit’s
lack of technology-based controls applicable to the “decant,” it failed to object to
the Region’s determination that the Transport was not a POTW. Indeed, the Sierra
Club’s comments may be read as conceding that BAT and BCT are the required
technologies for discharges from the west chamber of the Transport. However, Central
Coast did comment that full secondary treatment standards should apply to the com-
bined flows discharged from the Transport through the SWOO.

26Section 122.2 of Title 40 of the Code of Federal Regulations provides that
the definitions set forth in that section “apply to parts 122, 123, and 124.” These

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CITY AND COUNTY OF SAN FRANCISCO 569

any device or system used in the treatment (includ-
ing recycling and reclamation) of municipal sewage
or industrial wastes of a liquid nature which is
owned by a ‘state’ or ‘municipality.’ This definition
includes sewers, pipes, or other conveyances only if
they convey wastewater to a POTW providing treat-
ment.

Petitioners argue that the Transport is a POTW because it “partially
stores and treats sewage and conveys it to a POTW.” By so character-
izing the discharges from the Transport, Petitioners ignore the fact
that the two-chambered design of the Transport separates the flow
of CSOs into two chambers and then directs the flow from each
chamber in two different directions for discharge into the SWOO
from two separate locations.

The combined flows stored in the east chamber of the Transport
will be conveyed to the Oceanside Plant for treatment. As a result,
that portion of the Transport, the east chamber, falls squarely within
the definition of a POTW as defined by § 122.2 and the effluent
so conveyed must receive secondary treatment. Petitioners have ac-
knowledged that the Oceanside Plant will be subject to secondary
treatment requirements.27 The Region has also represented that
“those wastes conveyed by the Transport to the POTW will receive
secondary treatment as Petitioners demand.” Region’s Response to
Revised Petition, at 11. Consequently, to the extent Petitioners’ con-
cern is with the discharge from the east chamber, there should be
no doubt that these wastes will receive secondary treatment.

To the extent Petitioners are concerned with the combined flows
which exceed the capacity of the east chamber of the Transport and
flow into the west chamber, the Region properly concluded that the
west chamber is not a POTW. First, the west chamber of the Trans-
port does not and will not “convey wastewater” to a POTW. The
wastewater in the west chamber is pumped directly to the SWOO.

three parts implement the NPDES permitting program required by Section 402 of
the Clean Water Act.

27 As noted earlier, the Region has withdrawn and reproposed a portion of the
permit concerning certain secondary treatment requirements. Nonetheless, the critical
point to be made is that the wastewater conveyed by the east chamber of the Transport
to the treatment plant will be treated with the same secondary treatment requirements
applicable to that POTW. We note that the permit establishes certain secondary treat-
ment requirements for discharges from the treatment plant to the SWOO; it does
not draw a distinction between the treatment required by the existing Sunset-Rich-
mond Plant and that required by the future Oceanside Plant.

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ENVIRONMENTAL ADMINISTRATIVE DECISIONS 570

Second, the flows through the west chamber are not being “treated”
as contemplated by the definition of POTW in § 122.2. The diversion
of CSOs28 to the west chamber of the Transport is not intended
for the purpose of effecting “treatment” of sewage before discharge.
Rather, the diversion is intended for the purpose of preventing dam-
age to the treatment plant and of discharging those flows that cannot
otherwise be inhibited for later “treatment.” While the excess
wastewater from the east chamber flows under a baffle and over
a weir into the west chamber before it is pumped to the SWOO,
the resulting control over settleable solids and floatable materials
does not mean that the flow is being “treated” within the meaning
intended by § 122.2. Rather, this reflects the application of BAT and
BCT technology-based controls to discharges of CSOs as contemplated
by the Clean Water Act. See generally Montgomery Environmental
Coalition v. Costle, 646 F.2d 568, 589-591 (D.C. Cir 1980).

The Region’s position that the discharge from the west chamber
is subject to BAT and BCT technology controls is consistent with
EPA’s CSO Strategy. EPA’s CSO Strategy provides that:

CSOs are point sources subject to NPDES permit
requirements including both technology-based and
water quality-based requirements of the CWA. CSOs
are not subject to secondary treatment regulations
applicable to publicly owned treatment works (Mont-
gomery Environmental Coalition v[ ]. Costle, 646 F.2d
568 (D.C. Cir. 1980).[?9]

28 The discharges from the west chamber of the Transport fall within the definition
of CSOs set forth in EPA’s CSO Strategy. EPA’s CSO Strategy defines CSOs as
“flows from a combined sewer in excess of the interceptor or regulator capacity that
are discharged into a receiving water without going to a [POTW]” and that “occur
prior to reaching the headworks of a treatment facility.” 54 Fed. Reg. at 37,371.
The discharges from the west chamber of the Transport are wet weather flows from
a combined sewer system that exceed the treatment plant’s capacity. Such flows occur
prior to reaching the headworks of the treatment plant and are diverted to the trans-
port prior to reaching the treatment plant. They are diverted directly to the SWOO
without going first to the treatment plant for treatment.

29In Montgomery, the D.C. Circuit held that CSOs are subject to the technology-
based requirements of the Clean Waster Act for “private discharges rather than the
secondary treatment required for POTWs.” Montgomery, 646 F.2d at 592. In that
case, the D.C. Circuit determined a “combined sewer overflow point,” which discharged
sewage during extreme storm conditions, was a not a POTW under EPA’s former
definition of “treatment works.” That former definition of “treatment work at former
40 CFR § 124.1(hh), 38 Fed. Reg. 13,528, 13,530 (May 22, 1973), provided that:
the term ‘treatment works’ means any facility, method or sys-
tem for the storage, treatment, recycling or reclamation of
municipal sewage or industrial wastes of a liquid nature, in-

VOLUME 4
CITY AND COUNTY OF SAN FRANCISCO 571

Technology-based permit limits should be estab-
lished for best practicable control technology cur-
rently available (BPT), best conventional pollutant
control technology (BCT), and best available tech-
nology economically achievable (BAT) based on best
professional judgment (BPJ) when permitting CSOs.

Id.

Without question, EPA’s conclusion that CSOs are not POTWs
but are point sources subject to BAT and BCT controls is a correct
one. Accordingly, there is no basis for reversing the Region’s conclu-
sion. Indeed, as noted, these interpretations were previously upheld
by the D.C. Circuit in Montgomery, supra.*°

Petitioners next argue that the Transport is a POTW because
it falls within the definition of “treatment works” found at Section
212(2) of the Clean Water Act and that such definition applies to
Section 301 of the Clean Water Act. They argue that the D.C. Circuit
erred in holding to the contrary in Montgomery.3+

We need not address this issue because a review of Petitioners’
comments confirms that Petitioners failed to raise it during the com-
ment period.22 EPA regulations provide that on appeal “no issues
shall be raised by any party that were not submitted to the adminis-
trative record * * * as part of the preparation of and comment on
a draft permit unless good cause is shown for the failure to submit
them.” See 40 CFR § 124.76; In re Puerto Rico Sun Oil Company,
Inc., NPDES Appeal No. 92-20, at 17 (EAB, Oct. 23, 1992). Petition-
ers have not met this requirement and have not otherwise alleged
or argued any basis for applying the good cause exception to their
failure to raise the issue as required by 40 CFR §124.76. See In

cluding waste in combined storm water and sanitary sewer
systems.

30 See supra note 29.

31While we decide this issue on procedural grounds, we note that the D.C. Circuit
held in Montgomery that “neither the language of the [Clean Water] Act nor its
history supports the conclusion that the definition of ‘treatment works’ in section
212 should be viewed as supplying the meaning of that term in section 301.” Montgom-
ery, 646 F.2d at 591. This holding in Montgomery has not been overruled or disagreed
with by any other federal court. Nor has it been superseded by any statutory law.

32The three comment letters submitted in 1990 in connection with the subject
permit include: a comment letter submitted by the Sierra Club dated June 18, 1990;
a comment letter submitted by Anthony Michalak dated June 6, 1990; and a comment
letter submitted by Central Coast dated June 4, 1990.

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572 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

re NPC Services, Inc., NPDES Appeal No. 91-4, at 2-3 (CJO, May
30, 1991).

In sum, we conclude that the Region correctly determined that
the west chamber of the Transport is not a POTW and that, therefore,
the discharges from that chamber do not require secondary treat-
ment.

2. Whether the Board Should Consider Challenges to Issues
   Concerning the Technology-based Requirements for dis-
   charges from the Transport to the SWOO

Petitioners’ argue that to the extent the discharge from the west
chamber of the Transport through the SWOO is subject to the tech-
nology-based requirements of BAT and BCT in accordance with Sec-
tion 301(b\2) of the Clean Water Act, the Region’s failure to require
technology-based controls, other than baffling, violates the Clean
Water Act, EPA regulations, and EPA’s CSO Strategy. Petitioners
raise numerous objections which fall into three general categories.
They argue that the Region erred by (1) failing to require “treatment”
or “effluent limitations” for most pollutants, (2) failing to consider
and to analyze adequately the relevant factors for determining the
level of treatment required by BAT and BCT, and (8) failing to
require certain minimum technology-based limitations set forth in
EPA’s CSO Strategy.

In addition to dismissing Petitioners’ contentions on the merits,
the Regional Administrator denied the Hearing Request for the first
two issues set forth above on procedural grounds.2? The Region ar-
gues on appeal that by virtue of its decision to reopen the permit
to determine the appropriate BAT and BCT limitations for the Trans-
port, “strong policy considerations militate[] against granting review.”
We agree and conclude, for the following reasons, that all three
of the issues set forth above are not ripe for review.

33 Specifically, the Regional Administrator denied review of Petitioners’ challenges
to the Region’s failure to consider certain factors and the adequacy of the Region’s
BAT/BCT determination on the grounds that (1) such issues had not been raised
during the comment period as required by 40 CFR §124.76 and (2) some issues
failed to state “the legal or factual question alleged to be at issue” and to designate
“the specific factual areas to be adjudicated” as required by 40 CFR § 124.74(b\ 1).
The Regional Administrator denied review of Petitioners’ challenge that the permit
failed to require “treatment” or “effluent limitations” on the grounds that (1) Petition-
ers had failed to raise a factual issue as required by 40 CFR §124.25(a) and (2)
the supporting arguments for their position had not been raised during the comment
period as required by 40 CFR § 124.76.

VOLUME 4
CITY AND COUNTY OF SAN FRANCISCO 573

As noted above, when the Regional Administrator denied the
Petitioners’ Hearing Request on the issues identified, the Regional
Administrator also withdrew certain portions of the permit in accord-
ance with 40 CFR § 124.60(b). In particular, the Regional Adminis-
trator agreed to repropose the portions of the permit that establish
the BAT and BCT limitations for the Transport to determine:

Whether BAT or BCT requires effluent limitations
that reflect the additional amount of pollutant re-
moval achievable through expansion of the Trans-
port’s existing capacity to store combined flows for
later treatment at the new Oceanside Plant, thus

reducing the amount of decant discharged to the
Swoo.

Consequently, there is no final permit decision regarding the appro-
priate technology-based controls required for the discharge of pollut-
ants from the west chamber of the Transport through the SWOO.
As such, there is nothing for the Board to review.

Under 40 CFR §124.60(b), the new draft permit must proceed
through the same process of public comment and opportunity for
a public hearing as would apply to any other draft permit subject
to Part 124. As long as an issue is sufficiently related to that portion
of the permit which has been withdrawn and reproposed under
§ 124.60(b), Petitioners will not be precluded from raising in that
proceeding all ascertainable issues and submitting all reasonably
+available arguments pertaining to that draft permit. See 40 CFR
§ 124.13; cf. In re Hadson Power 14—Buena Vista, PSD Appeal Nos.
92-3, 92-4 & 92-5, at 45 (EAB, Oct. 5, 1992)(when an issue is
remanded, comments submitted during a reopened public comment
period may support a renewed challenge in any further appeal after
completion of that remanded proceeding).

In recognition of this principle, the Region, in its Response to
the Revised Petition, has represented that with respect to those is-

sues concerning the appropriate technology controls required by BAT
and BCT:

Petitioners will be able to raise issues and arguments
relevant to the new draft decision—whether or not
hearing on such issues and arguments were denied
in this proceeding,—and to pursue appeal if they so
desire. . . . [T]o the extent the Hearing Request was

VOLUME 4
574 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

deficient, Petitioners will have another chance to per-
fect their arguments in the new proceeding.

Region’s Response to the Revised Petition, at 41.

In these circumstances, until such time as the Region makes
a decision on the reproposed permit, it is not possible to determine
whether the Region has failed to require appropriate “treatment”
or “effluent limitations” for pollutants discharged from the Transport
or whether the Region has failed to consider and to analyze ade-
quately the relevant factors for determining the level of treatment
required by BAT and BCT. Consequently, we agree with the Region
and conclude that these two issues, and the many subissues raised
thereunder and arguments asserted in support thereof, are not yet
ripe for review.

While the Region has addressed the merits of Petitioners’ third
issue regarding the permit’s compliance with EPA’s CSO policy, we
conclude that this issue is also not ripe for review. In particular,
the third issue concerns whether the permit complies with three
minimum BAT/BCT technology-based limitations set forth in EPA’s
CSO Strategy. EPA’s CSO Strategy provides, in pertinent part, that:

All permits for CSO discharges should require the
following technology-based limitations as a minimum
BCT/BAT, established on a BPJ basis: * * * (2) max-
imum use of the collection system for storage; * * *
(4) maximization of flow to the POTW for treatment;

• • • and (6) control of solid and floatable materials
      in CSO discharges.

54 Fed. Reg. at 37,372. Again, until the Region issues a final decision
on the reproposed portion of the permit regarding the appropriate
technology-based controls required by BAT and BCT for discharges
from the west chamber of the Transport through the SWOO, it is
not possible to determine whether the permit complies with these
three minimum technology-based limitations.

Accordingly, all of Petitioners’ objections regarding the Region’s
assessment of the BAT and BCT requirements and the lack of tech-
nology-based controls for discharges of pollutants from the west cham-
ber of the Transport through the SWOO are not ripe for review.
To the extent these or any other issues relating to the appropriate
BAT and BCT technology-based controls applicable to those dis-
charges are properly preserved for review in accordance with 40 CFR

VOLUME 4
CITY AND COUNTY OF SAN FRANCISCO 575

Part 124, the Petitioners may reassert them in an appeal from the
final decision on those reproposed portions of the permit.

B. The Mass Limitations for Pollutants Discharged from the Ocean-
side Plant

Petitioners also assert that the permit does not establish enforce-
able mass limitations, as required by EPA regulations, for discharges
from the treatment plant through the SWOO.*4 In brief, Petitioners
maintain that the flow limits required to establish mass limitations
are either lacking or inadequate.

Both Petitioners and the Region refer to mass limitations as
limitations applying to discharges during either “dry weather” or
“wet weather.” In the context of this discussion on mass limitations,
“dry weather discharges” is a reference to those discharges from
the treatment plant occurring during a specific three consecutive
month period each year.35 The calendar months for this three-month
period are not defined by the permit.

With regard to mass limitations during the period of “wet weath-
er discharges,” the Region concedes that the permit does not contain
any flow limit during that period of time. Indeed, the Region is
seeking comment on the new draft permit on the issue of whether
the permit should establish “wet weather” flow limits. Since this
issue of the appropriate flow limit goes to the heart of Petitioners’
objection that the permit lacks enforceable mass limitations for dis-

34The issues raised by Petitioners are purely legal. See supra note 24.

35 The Region and Petitioners each distinguish between the mass limitations estab-
lished for pollutants discharged during “dry weather” and those established for pollut-
ants discharged during “wet weather.” This distinction is apparently grounded in
section A.8 of the permit. That section of the permit establishes an “average dry
weather flow” limit of 24 mgd for “three consecutive dry weather months each year.”
The permit establishes no limit whatsoever for “wet weather flow” or the remaining
nine months of the year. As discussed below, the mass limitations in the subject
permit must be based on flow limits; therefore, the mass limitations for “dry weather
discharges” are those based on “dry weather” flow limits. In the subject permit, the
“dry weather” flow limit is a “three-month” limit.

36 The issue withdrawn and reproposed for reconsideration by the Regional Admin-
istrator is stated as follows:

Whether a wet weather flow limit for the effluent from the
Oceanside Plant is appropriate and, if so, what the appro-
priate limit should be.

Notice of Intent to Repropose, at 7.

VOLUME 4
576 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

charges during the period of “wet weather,” the issue pending before
the Board is not ripe for review.

With respect to the mass limitations that apply to pollutants
discharged during the period of “three consecutive dry weather
months each year,” we agree with Petitioners that the permit fails
to establish enforceable mass limitations as required by 40 CFR
§ 122.45(f) and, for the reasons set forth below, remand the permit
to the Region so that appropriate mass limitations may be estab-
lished.

EPA regulations set forth specific requirements for establishing
mass limitations in an NPDES permit. Section 122.45(f)(1) requires
that “[a]ll pollutants limited in permits shall have limitations, stand-
ards or prohibitions expressed in terms of mass, except [under certain
specified circumstances].”37 40 CFR § 122.45(f)(1). Section 122.45(d)(2)
requires that for continuous discharges from a POTW, all limitations
must be stated as “[a]verage weekly and average monthly discharge
limitations” unless impracticable.2?8 40 CFR § 122.45(d)(2). “Continu-
ous discharges” are those which occur “without interruption through-
out the operating hours of the facility, except for infrequent shut-
downs for maintenance, process changes, or other similar activi-
ties.” 39 40 CFR § 122.2.

37 The exceptions set forth in § 122.45(f)(1) are:

(i) For pH, temperature, radiation, or other pollutants which
cannot appropriately be expressed by mass;
(ii) When applicable standards and limitations are expressed
in terms of other units of measurement; or
(iii) If in establishing permit limitations on a case-by-case basis
under § 125.3, limitations expressed in terms of mass are infeasi-
ble because the mass of the pollutant discharged cannot be related
to a measure of operation (for example, discharges of TSS from
certain mining operations), and permit conditions ensure that dilu-
tion will not be used as a substitute for treatment.
The Region has not relied on any exemption.
38EPA regulations define “average weekly” and “average monthly” mass discharge
limitations at 40 CFR § 122.2 (“average monthly discharge limitation”; “average weekly
discharge limitation”; and “daily discharge”). An “average weekly” or “average monthly”
discharge limitation means the highest allowable average of “daily discharges” over
a calendar week or month, e.g., the highest allowable average number of pounds
of a pollutant discharged per day over a calendar week or month. 40 CFR § 122.2.
The “average weekly and monthly discharges” are calculated as the total number
of pounds of a pollutant discharged each day during a calendar week or month and
then divided by the number of days the pollutant was discharged during that week
or month. See id.

39The constant daily flow of sewage to the treatment plant would fall within
the definition of “continuous discharge” at § 122.2.

VOLUME 4
CITY AND COUNTY OF SAN FRANCISCO 577

The subject permit does not set forth specific average weekly
and average monthly mass limitations for each pollutant limited in
the permit. Rather, it sets forth an equation which the Region con-
tends allows the permittee and the public to convert concentration
limitations, expressed in various terms,4° into mass limitations.*1
Specifically, section E.6 of the permit provides:

Where effluent concentration limitations in mg/l or
ug/l are contained in this Permit, the following Mass
Emission Limitations shall also apply:

(Mass Emission Limit in lb/day) = (Concentration
Limit in mg/l) x (8.34) x (Actual Flow in million
gallons per day averaged over the time interval to
which the limit applies).

Elsewhere, at section A.3, the permit provides that the “average
dry weather flow” limit is 24 mgd.42 The Region has construed the
flow limit in section A.3 to be an “average three-month” flow limit.4%

40 Section 122.45(f(2) provides that “[plollutants limited in terms of mass addition-
ally may be limited in terms of other units of measurement, and the permit shall
require the permittee to comply with both limitations.” 40 CFR §122.45(f)(2). With
respect to most of the pollutants limited by the subject permit, the permit contains
numerical effluent limitations expressed in terms of “concentration limitations.” For
such pollutants, concentration limitations may be expressed as an absolute maximum
and/or a maximum average number of grams of the pollutant allowed per liter of
effluent (mg/l, ug/l, ng/l, or pg/l) over one or more specified time intervals. For some
conventional pollutants, concentration limitations are expressed in terms of a “monthly
average,” “weekly average,” and “maximum at any Time.” For toxic pollutants that
affect marine aquatic life, concentration limitations are expressed in terms of a “6-
month median,” “daily maximum,” and “Instanteous Maximum.” For other toxic pollut-
ants that affect human health (carcinogens and non-carcinogens), concentration limita-
tions are expressed only in terms of a “monthly average.”

41 See supra note 15.

42 Section A.3 of the permit provides:

The average dry weather flow shall not exceed 24 million gallons

per day. Average dry weather flow shall be determined over three

consecutive dry weather months each year.
It is not immediately clear whether the average flow limit of 24 mgd is an “average
monthly” or “average three-month” limit. We note that this question was raised during
the comment period and not addressed in the Region’s Response to Comments. See
Comments of Anthony Michalak, at 1 (“Does this mean it is a dry weather monthly
average flow limitation?”).

43 That the flow limit in section A.3 was intended to be an average three-month
flow limit is evident from the Regional Administrator’s denial of the Hearing Request
which stated:

Continued

VOLUME 4
ENVIRONMENTAL ADMINISTRATIVE DECISIONS 578

Petitioners argue that the equation at section E.6 does not estab-
lish a lawful mass limitation because the equation allows the mass
limitation to fluctuate with the “actual flow.”44 As a consequence,
the Petitioners argue that the permit fails to establish a “ceiling”
or limitation on the discharge of mass on an average weekly and
monthly basis.45 The Region responds that a flow limit in the equa-
tion is unnecessary since elsewhere in the permit it has established
a three-month average flow limit. The Region argues that while the
flow may fluctuate on a short-term basis, the permittee will minimize
such fluctuations to meet the long-term three-month average flow
rate and, therefore, the actual flow for purposes of calculating average
weekly and monthly mass limitations is, in effect, “limited” by the
average three-month flow limit of 24 mgd.*6

Petitioners acknowledge that the permit establishes a three-
month average flow limit but argue that because the three-month
flow limit is not expressly incorporated into the equation for calculat-
ing mass limitations, a violation of that flow limit does not mean

section A.3 allows the actual flow to exceed 24 mgd for short
periods as long as these exceedances are counterbalanced by
flows less than 24 mgd at other times so that, at the end
of three dry months each year, the flow averages out to no
more than 24 mgd.

Decision on Hearing Request, at 37 (emphasis added).

44The Region concedes that the mass limitations will vary based on actual flow.
In denying the Hearing Request, the Regional Administrator stated “since mass limits
are calculated based on the actual flow, which is not known until after the discharge,
they cannot be calculated in advance and included in the permit as suggested by
Requesters.” Decision on Hearing Request, at 36.

45Two points should be noted. First, since EPA regulations require only average
weekly and monthly mass limitations, Petitioners’ objections to the permit’s failure
to establish any other enforceable mass limitations is rejected. See 40 CFR
§ 122.45(d(2).

Second, Petitioners seek a flow limit in the equation for calculating mass limita-
tions expressed as: “the observed flow rate in MGD for the time interval to which
the limit applies or 24 MGD, whichever is the lesser amount.” Revised Petition,
at 26. In other words, Petitioners seek a daily maximum flow limit or a lesser flow
limit (and, as a result, a lower mass limitation) when the observed flow is less
than the daily maximum flow. The Region responds to Petitioners’ request for an
absolute daily flow limit of 24 mgd by stating “an absolute flow limit of 24 mgd
in the mass loading equation will distort the maximum average flow limit of section
A.3.” Decision on Hearing Request, at 37. We need not address whether the flow
limits sought by Petitioner are appropriate since the numerical value of any absolute
or average flow limit must be determined by the Region in the first instance on
remand.

46 See supra note 42; see also Response to Revised Petition, at 48 (the Region
asserted that the permittee will “minimize any short-term excursions above the 24
mgd limit or risk exceeding the long-term average”).

VOLUME 4
CITY AND COUNTY OF SAN FRANCISCO 579

the permittee has also violated any mass limitations.47 Petitioners
argue further that assuming the three-month flow limit is impliedly
incorporated into the equation, violations of mass limitations could
only be known after the three-month period when it is determined
that the permittee has violated the three-month flow limit. Even
then, Petitioners complain it is not clear just what mass limitation
would be violated.48 Importantly, under the Region’s interpretation
of the permit, if the three-month average flow limit of 24 mgd is
not violated, there can be no mass limitation violation (assuming
concentration limitations are met) despite the fact that flows may
vary significantly in any given week or month from that 24 mgd
goal.

We conclude that the Region’s equation does not comport with
EPA’s regulations for mass limitations. Unless it is impracticable
to establish average weekly or monthly mass limitations or a pollut-
ant is exempt from a mass limitation, the regulations require average
weekly and monthly mass limitations. See 40 CFR §122.45(d(2) &
(f(1). Under the equation, as presently drafted in the permit, the
three-month average flow limit does not establish a limit on flow
for the calendar weeks or months within the three-month period.
As a consequence, there is no set limit on mass for each calendar
week or month within the three-month period. Allowing mass limita-
tion to fluctuate with actual flow throughout the three-month period
renders the average weekly or monthly mass limitations requirement
essentially meaningless.

In these circumstances, the Region’s position must be rejected
and the permit remanded with instructions for the Region to set
appropriate mass limitations in accordance with the above-noted reg-
ulations.

C. The Permit’s Compliance with the Anti-backsliding Prohibition of
the Clean Water Act

Finally, Petitioners argue that the subject permit violates the
anti-backsliding provision of the Clean Water Act, Section 402(0) of

47Petitioners make this point by stating that, under the terms of equation in
the permit, “[w]hatever is discharged is, by definition, within that fluctuating limit,
whether or not the maximum flow (as opposed to actual flow) set forth at section
A.3 is being violated.” Revised Petition, at 27.

48 This point is made when Petitioners state:

if the Region were correct in its assertion that the three-

month flow average limit always applies to the equation

(which, on its face, it does not), which of the two distinct

concentration limits for. [sic] e.g., BOD, should apply, the

30 mg/l monthly average or the 45 mg/l weekly average?
Revised Petition, at 27-28.

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580 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the Clean Water Act, 33 U.S.C. § 1342(0), and 40 CFR § 122.44(1)(1).49
Specifically, Petitioners maintain that the Section 301(h) NPDES per-
mit issued by the Region in 1988 or State Order No. 88-106 issued
by the State Regional Board established more stringent effluent limi-
tations than those in the subject permit for seventeen toxic pollutants
discharged from the treatment plant through the SWOO ®° and thirty-
two toxic pollutants discharged from the west chamber of the Trans-
port through the SWOO 5! to the Pacific Ocean.®2

49We note that Petitioners argue that the permit violates both Section 402(0)
of the Clean Water Act and 40 CFR §122.44(1). Section 402(0) was enacted by the
Water Quality Act of 1987, Public Law 100-4, 101 Stat. 7 et seg. Prior to enactment
of this statutory anti-backsliding provision, EPA had promulgated an anti-backsliding
regulation at 40 CFR § 122.44(1)(1). 48 Fed. Reg. 14146, 14170 (April 11, 1983) (reor-
ganizing Part 122); see 45 Fed. Reg. 33,290, 33,450 (May 19, 1980) (final rule establish-
ing consolidated permit program requirements governing the NPDES program under
the Clean Water Act). Subsequent to enactment of Section 402(0), EPA has revised
§122.44(1) to implement the statutory exceptions to the prohibition on backsliding
from BPJ limits when less stringent effluent limitations guidelines are subsequently
promulgated. 54 Fed. Reg. 246, 251-252, & 256 (Jan. 4, 1989). During this revision,
EPA also implemented the statutory prohibition on the issuance of a permit less
stringent than existing effluent guidelines or applicable state water quality standards,
Id.

That revision of §122.44(1), however, did not implement, and to date EPA has
not implemented, the statutory prohibition against backsliding from water quality-
+based permits. Id. at 252. EPA Draft Interim Guidance on Implementation of Section
402(0) Anti-backsliding Rules for Water Quality-Based Permits, issued by the Office
of Water Enforcement and Permits on September 29, 1989, provides that:

The statutory anti-backsliding provisions found at §402(0)
take precedence over EPA's existing regulations governing
backsliding, found at § 122.44(1)(1)[]. Therefore, the Regions
and States must now apply the statute itself, instead of these
regulations, when questions arise regarding backsliding from
limitations based on State treatment or water quality stand-
ards.

Draft Interim Guidance, at 2. While draft guidance does not have the effect of binding
EPA’s position, it reflects EPA’s latest thinking. See In re Hadson Power 14—Buena
Vista, PSD Appeals Nos. 92-3 through 92-5, at 10. Consequently, we limit our discus-
sion to Section 402(0) although the D.C. Circuit has held that EPA had authority
to issue its anti-backsliding regulation prior to enactment of Section 402(0). See Natu-
ral Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 859 F.2d
156, 1977-203 (D.C. Cir. 1988) (challenge concerned BPJ portion of EPA anti-back-
sliding regulation). Thus, § 124.44(1)(1) does not apply.

50 See Revised Petition, at 30-31.
51 See Revised Petition, at 31-32.

52The pertinent numerical effluent limitations for toxic pollutants are water qual-
ity-based controls derived from the Water Quality Control Plan for Ocean Waters
of California adopted by the State Water Resources Control Board in 1990. Con-
sequently, Petitioners’ concern that the subject permit fails to comply with the statu-

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CITY AND COUNTY OF SAN FRANCISCO 581

Section 402(0) of the Clean Water Act provides, generally, that
the effluent limitations of a renewed, reissued, or modified permit
must be at least as stringent as the effluent limitations in the “pre-
vious permit.”53 The Conference Report for the Water Quality Act
of 1987, which enacted the statutory anti-backsliding provision, ex-
plains that Congress intended “to preserve pollution control levels
achieved by dischargers by prohibiting the adoption of less stringent
treatment or control limitations, standards, or conditions than those
already contained in a permit.” H.R. Conf. Rep. No. 1004, 99th Cong.
2d Sess. 1986, at 155 (emphasis added).

We conclude that the subject permit is not a “renewed, reissued,
or modified” version of the Section 301(h) permit or any other “pre-
vious permit” and, therefore, the anti-backsliding provision of Section
402(0) does not apply to this permit. As noted at the outset, the
City initially discharged pollutants from the Richmond-Sunset Plant
through the SWOO pursuant to a 1986 state-issued NPDES Permit
No. CA0037681.54 Soon after the City began discharging under the
state-issued NPDES permit, EPA issued an administrative order, No.
IX-FY87-7, upon determining that the state did not have jurisdiction
over the discharge. The order established “interim” effluent limita-
tions and monitoring requirements pending issuance of a final federal
permit for discharges from the SWOO. The EPA administrative order
expressly states that it “is not and shall not be interpreted to be
a[] NPDES permit under Section 402 of the Act” and “shall expire

tory and regulatory anti-backsliding provisions concerning permits written on a case-
by-case basis under Section 402(a(1) using BPJ is unwarranted.

We note that the Regional Administrator denied an evidentiary hearing on this
issue because Petitioners failed to raise any material issue of fact. The Regional
Administrator determined that the “factual basis” for the challenge was invalid since
the Section 301(h) modified NPDES permit was not “in full force and effect.” Decision
on Hearing Request, at 38. The question of whether the subject permit is a “renewed,
reissued, or modified” version of the section 301(h) permit raises only legal issues.

53The relevant portion of Section 402(0) of the Clean Water Act provides that:

In the case of effluent limitations established on the basis

of [Section 301(bX1)(C), 33 U.S.C. §1311(b\1)(C) or Section

303(d) or (e), 33 U.S.C. §1313(d) or (e)], a permit may not

be renewed, reissued, or modified to contain effluent limita-

tions which are less stringent than the comparable effluent

limitations in the previous permit except in compliance with

[Section 303(d\4), 33 U.S.C. § 1313(d)(4)].
This portion of Section 402(0) is generally referred to as the anti-backsliding provision
for water quality-based effluent limitations.

54The Region has consistently assumed that by issuing an NPDES permit for
the subject discharge, it was reissuing the state’s 1986 NPDES permit. The Region
has never suggested that the subject permit is in any way a reissued version of
the Section 301(h) permit.

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582 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

immediately upon the effective date of an NPDES permit issued
by EPA.” Administrative Order IX-FY87-7, at 20. In 1988, the Re-
gion issued the Section 301(h) permit but that NPDES permit never
became effective because in August 1988 several hearing requests
were submitted in that permit proceeding. See 40 CFR § 124.15(b).

The Region maintains that, as a result of the hearing requests
filed in the Section 301(h) permit proceeding, the Section 301(h) per-
mit was “stayed” and therefore “the 301(h) permit decision as a
whole did not take effect and consequently never placed any enforce-
able obligations on the City.” The Region reasons that an NPDES
permit that never became effective and is unenforceable cannot be
a “previous permit” for purposes of determining whether a subsequent
permit violates the anti-backsliding provision.

Petitioners dispute these contentions. They assert that the perti-
nent numerical effluent limitations in the Section 301(h) permit were
not “stayed” because (1) the hearing requests submitted in that per-
mit proceeding did not contest those limitations or the point for
monitoring those limitations and (2) stays of contested provisions
can only occur after a hearing is granted, citing to 40 CFR § 124.16(a).
Next, they assert that the effluent limitations would have been effec-
tive and enforceable had the Regional Administrator decided to grant
or deny the hearing requests in accordance with the regulatory time
requirement for doing so. Finally, they argue that the effluent limita-
tions in the Section 301(h) permit are “in effect” by virtue of the
companion State Order.55 For the reasons set forth below, Petitioners’
arguments must be rejected.

Agency regulations provide that after the close of the public
comment period on a draft NPDES permit, “the Regional Adminis-
trator shall issue a final permit decision” and the “final permit deci-
sion * * * ghall become effective 30 days after the service of notice
of the decision unless * * * an evidentiary hearing is requested under
§ 124.74.” 40 CFR § 124.15(a) & (b) (emphasis added).

Section 124.16(a), which is set forth in Subpart A of Part 124
concerning “General Program Requirements” for RCRA, UIC, PSD
and NPDES permits, provides, generally, that if a hearing request
concerning an NPDES permit is granted, the effect of contested per-
mit conditions and uncontested permit conditions that are not sever-
able from the contested conditions shall be stayed while the
uncontested permit conditions that are severable from the contested

55 See supra note 18.

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CITY AND COUNTY OF SAN FRANCISCO 583

conditions “shall remain fully effective and enforceable.” 40 CFR
§124.16(a). Section 124.16(a) expressly refers to § 124.60 which is
set forth in Subpart D of Part 124 concerning “Specific Procedures
Applicable to NPDES Permits.” Section 124.60(c)(1), in turn, provides
that if a hearing request regarding an NPDES permit is granted
or if a petition for review of the denial of a hearing request is
timely filed, “the force and effect of the contested conditions of the
final permit shall be stayed.” 40 CFR § 124.60(c)(1). Importantly, with
regard to uncontested conditions, the regulations provide that the
Regional Administrator must notify “the discharger and all parties
of the uncontested conditions of the final permit that are enforceable
obligations of the discharger.” 40 CFR § 124.60(c)(5) (emphasis added).
We note that the more general regulation, § 124.16(a), similarly re-
quires that the Regional Administrator must clarify the conditions
that are enforceable from the conditions that are not enforceable.
See 40 CFR § 124.16(a) (if a request for review of an NPDES permit
is granted, the Regional Administrator must identify those conditions
that will be stayed and all other conditions shall be enforceable).

In these circumstances, Petitioners’ reliance on § 124.16 is mis-
placed. Under the unique procedures involving NPDES permits,
§ 124.15(b)(2) provides that an NPDES permit is simply not effective
pending a request for an evidentiary hearing. Once the Regional
Administrator acts on the hearing request it is possible that certain
uncontested conditions may go into effect. However, the regulations
contemplate that before any uncontested conditions become enforce-
able, the Regional Administrator must clarify which conditions will
become effective.

Since evidentiary hearing requests were submitted in the Section
301(h) permit proceeding and the Region never granted or denied
those hearing requests, the Region correctly concluded, based upon
§ 124.15(b), that none of the conditions in the Section 301(h) permit
became effective and enforceable. As a result, the City was never
required to comply with any limitations contained in the Section
301(h) NPDES permit. Accordingly, the subject permit is not a “re-
newed, reissued, or modified” version of the Section 301(h) NPDES
permit. The Section 301(h) NPDES permit is not a “previous permit”
for purposes of the anti-backsliding provision of the Clean Water
Act.

Notwithstanding the fact that Section 301(h) permit was not
effective and enforceable, Petitioners argue that the toxic effluent
limitations in the Section 301(h) permit which were uncontested by
the hearing requests would have been established in a “previous

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584 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

permit” had the Region complied with the directive of 40 CFR
§ 124.75(a)(1). That regulation directs that within thirty days follow-
ing the time allowed for submitting requests for an evidentiary hear-
ing, “the Regional Administrator shall decide the extent to which,
if at all, the hearing request shall be granted, provided that the
request conforms to the requirements of § 124.74, and sets forth mate-
rial issues of fact relevant to the issuance of the permit.” 40 CFR
§ 124.75(a)(1). The regulations do not prescribe a specific result in
the event the Region fails to comply with the time requirement of
§ 124.75(a)(1). Nonetheless, Petitioners argue that since the Region
did not act within the time prescribed, the Section 301(h) permit
should be deemed to be “effective” and, thus, the uncontested provi-
sions should be considered to be the “previous permit” for the purpose
of applying the anti-backsliding provisions to the subject permit.

Petitioners’ argument is, again, without merit. While we gen-
erally do not condone delays in acting on hearing requests, the Re-
gion’s inaction did not render the uncontested provisions of the Sec-
tion 301(h) permit effective and enforceable. Importantly, uncontested
NPDES conditions do not automatically become enforceable when
the Region grants or denies a hearing request. As noted above,
uncontested conditions are not enforceable until thirty days after
the date of the Region’s notice “of the uncontested conditions of the
permit that will be enforceable obligations of the discharger.” See
40 CFR §124.60(c)(1) & (2). Because such notice is required only
after the Region takes action on the hearing request, the Region
was never required to provide such notice in this case.

Here, the Region decided not to rule on the pertinent hearing
requests because of the City’s interest in withdrawing the 301(h)
permit. EPA’s Regional Offices must be given reasonable flexibility
in administering Agency permitting programs. Accordingly, without
clear statutory or regulatory authority supporting Petitioner's posi-
tion, we will not take away Regional permitting discretion by holding
that certain provisions become effective or ineffective when the Re-
gion fails to meet the time frame set in § 124.75(a)(1).56

56 Court’s have long recognized that agency discretion is not voided simply because
regulatory timeframes are missed. See United States v. Boccanfuso, 882 F.2d 666,
671 (2d Cir. 1989) (“Federal agencies do not lose jurisdiction by their failure to comply
with statutory time limits unless the statute demonstrates congressional intent that
this result occur * * *, and the Court is reluctant to void subsequent agency action
when an agency has failed to observe a procedural requirement but important public
rights are at stake and less drastic remedies are available,” citing Brock v. Pierce
County, 476 U.S. 253, 266 (1986)).

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CITY AND COUNTY OF SAN FRANCISCO 585

Finally, we turn to the Petitioners’ contention that the State’s
1988 Order, contained in the same document as the Section 301(h)
permit, is the current permit for discharges from the SWOO. As
discussed above, the state had no authority to issue an NPDES per-
mit for the discharges from the SWOO because the outfall for that
discharge is not located in state waters. See Pacific Legal Foundation,
supra; Sections 402(b) and 502(7) & (8) of the Clean Water Act;
NRDC v. EPA, 863 F.2d 1420. Consequently, the State Order is
not a “previous [NPDES] permit” for purposes of Section 402(0). The
Region properly concluded that the State’s 1988 Order was irrelevant
to the analysis under Section 402(o0).

Since there was no “previous [NPDES] permit” in effect prior
to issuance of the subject permit, we conclude that the subject permit
is not a “renewed, reissued, or modified” permit and, therefore, the
anti-backsliding provisions do not apply.

Ill. CONCLUSION

For the reasons stated above, we deny review in part and remand
in part. We conclude that the Region properly determined that the
west chamber of the Transport is not a POTW and that the subject
permit does not violate the prohibition on backsliding and, therefore,
we deny review on these issues. We also deny review with respect
to Petitioners’ challenges to the appropriateness of the BAT and
BCT controls for discharges of CSOs from the west chamber of the
Transport through the SWOO. These challenges are not ripe for re-
view. When a final permit decision is issued by the Region reflecting
its determination of the appropriate BAT and BCT limitations for
that discharge, Petitioners may reassert those challenges and any
others properly preserved for review.

Finally, we are remanding the permit to the Region to establish
appropriate mass limitations in accordance with the applicable regu-
lations. Final agency action for all issues concerning the mass limita-
tions in the subject permit shall occur only upon completion of the
administrative appeals process to the Board from the remanded pro-
ceeding. 40 CFR § 124.91(f).

So ordered.

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